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Moral Change Dynamics Structure and Normativity Cecilie Eriksen Full Chapter
Moral Change Dynamics Structure and Normativity Cecilie Eriksen Full Chapter
Dynamics, Structure,
and Normativity
Cecilie Eriksen
Moral Change
Cecilie Eriksen
Moral Change
Dynamics, Structure, and Normativity
Cecilie Eriksen
Utrecht University
Utrecht, The Netherlands
© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer
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Dedicated to my parents, Bjarne and Lise.
Preface
vii
viii PREFACE
Reference
Cavell, S. 1999. The Claim of Reason: Wittgenstein, Scepticism, Morality
and Tragedy. Oxford University Press.
Notes from the Author
xi
Contents
1 Introduction 1
8 Being Moved Beyond Our Good and Evil: The Crow Case 51
xiii
xiv CONTENTS
12 Moral Conflict 87
13 Moral Uncertainty 97
14 Moral Certainty105
15 Moral Distortion109
16 Moral Revolution123
17 Moral Progress137
Bibliography161
Index175
CHAPTER 1
Introduction
Change is one of the most striking features of morality. More than 2000
years after Heraclitus formulated his thoughts on the fundamental law of
cosmos and human life, his words are echoed in the Manifesto of the
Communist Party: “All that is solid melts into air, all that is holy is pro-
faned” (Marx and Engels 1888: 6). This quote captures the nature of
moral change as a two-edged sword. It is a source of both fear and hope.
Change can destroy what we care about and hold sacred, and it can be the
herald of hope for the downfall of ruthless tyrants and empty gods. It can
clear the ground for a better life. It is undoubtedly the latter meaning
Marx and Engels had in mind. They saw the holy of their time as a means
of sedating the poor and working classes, so they did not rise against those
in power to change the basic structures of society, which were harming
them gravely. Marx and Engels were in other words criticising and asking
for an overturn of what their society called good in order to be true to
what is good.
When someone, like Marx and Engels, like Singer, like Yousafzai, like
Thunberg, is criticising the values and ideals of their society, how can that
be done? What leads to the overthrow or gradual change of moral beliefs,
1
The words ‘ethics’ and ‘morality’ are used synonymously in this work. There is thus
not assumed any first- and second-order relationship between them, as sometimes is the
case, where, for example, ‘ethics’ refers to what is universal and ‘morality’ to a certain
society’s conception of what is morally good and bad (or vice versa), or where ‘ethics’ is
broad consideration over ‘the good life’ and ‘morality’ refers to ‘a system of rules for what
we owe to each other’ (see, e.g. Løgstrup 2020; Williams 2011; Keane 2016a; Fink 2012,
forthcoming).
1 INTRODUCTION 3
different political, cultural, moral and religious beliefs, traditions and prac-
tices. Another way of expressing this is that a healthy democracy—in order
to both be and survive as a democracy—needs to avoid dogmatic funda-
mentalism (insisting there is only one true morality, ideology and form of
life) and cynical, laissez-faire subjectivism (allowing ‘might to be right’ or
that ‘anything goes’). It is a balance that is hard to find, and which is often
challenged in a globalised world where various forms of transnational and
international politics, trade, migrations, corporations and conflicts take
place. In a democratic society it is also important that we are able to justify,
also often morally, the laws we pass, the institutions we create and some of
the judgements and decisions we make, because our governments and
legal systems are not self-justified or morally guaranteed by a God demand-
ing blind obedience. The legitimacy of such a society’s institutions arises
from being of service to, not only the people, but people. Therefore, it is
important to discuss how we can steer clear of both dogmatic fundamen-
talism and cynical subjectivism.
The belief that it is possible to avoid subjectivism in questions of how
we should live is at odds with what Jaeggi argues is a dominant trend in
philosophy since Rawls and Habermas, namely that the ethical content of
forms of life cannot be criticised or deemed better than other forms of life,
because in modern societies there is an irreducible and incommensurable
ethical pluralism (Jaeggi 2018: ix):
Philosophy has thus withdrawn from the Socratic […] question of how we
[are to] lead our lives [and this question] has been consigned to the domain
of unquestioned preferences or irreducible and unchallengeable identities.
As with taste, there is no quarrelling with forms of life. (Jaeggi 2005: 65)
2
Philosophical method is not one individual, distinct method, but the use of a large variety
of approaches and tools (see, e.g. Baggini and Fosl 2010; Haug 2017). The choice of specific
methods depends among other things on which problem one is addressing and on one’s
conception of philosophy: what philosophy is and aims for. There is no general agreement in
philosophy as to how ‘philosophy’ should be defined and understood (Daly 2010: 9–13;
Hämäläinen 2016: 7–8). Unsurprisingly, there is also no general agreement amongst scholars
what a ‘Wittgensteinian conception’ of philosophy is. For overviews of parts of the discus-
sion, see, for instance, Bronzo (2012), Pleasants (2008), Crary (2000b) and Christensen
(2003, 2011).
3
To avoid some of the critiques, which have been directed at other thinkers who also have
found it useful to direct their attention towards ‘the ordinary’ and ‘the everyday’ (see, e.g.
Zigon 2014, 2019; Robbins 2016), I must underline that this advice only applies when we
seek to understand a phenomenon familiar from our ordinary lives. If we seek to understand,
for example, what ‘measurement’, ‘particle’ and ‘experiment’ amounts to in quantum phys-
ics, we should not consult our everyday understanding of these words but investigate and
describe the uses of these words in this particular field of physics. Also, if we (as individuals,
as participants in a practice, or as a society), for example, seek to understand a novel situation,
where our old concepts find no—or no good—application, the philosophical task is also not
only descriptive, but can also be critical, creative and inventive. I will return this theme sev-
eral times in the following.
1 INTRODUCTION 5
4
Bolinska and Martin divide the challenges to the use of historical cases in philosophy into
two categories—the aforementioned methodological challenges, and what they term ‘meta-
physical challenges’. I address the first here, and return (though indirectly) to the latter in
Part II as part of dealing with what I term ‘sceptical doubts’.
6 C. ERIKSEN
5
Blindly succumbing to cultural-moral biases entail the possibility of “misrepresentations
of ‘distant’ forms of moral behaviour on the basis of specific norms and values of the observer
(e.g. nationalism, liberalism or Eurocentrism) […] and more fundamental biases, such as
blindness towards ‘morality in action’, the exaggeration of the importance of codified moral-
ity or the overemphasis of moral justifications in discussions of morality” (Widlok 2013: 20).
6
For example, Archard (2015), Ishay (2008), Hunt (2008) and Grahn-Farley (2013) refer
to human rights conventions as moral progress, and this is a fairly common conception of
this legal change. But there are dissenting voices to the idea of human rights as moral prog-
ress, see, for instance, Zigon (2013).
1 INTRODUCTION 7
research, but not elaborated much on in Part I, is ‘the fire soul’, so often
the hero of movies and biographies—the person those strong ideological
determination and struggle manages to create a moral change, or the ‘first
mover’, who “defy convention and spearhead new behaviours”, but not
necessarily does so out of strong moral or ideological convictions (Bicchieri
2017: xv). Other untreated dynamics are, for example, how technological
and medical innovations play into the creation of moral change. An exam-
ple of the first could be the Danish politicians’ decision to push the agenda
of ‘digital government’ made possible by the recent developments in com-
puter technology. One result of this is the ongoing transmission from
manual and paper-based public administration to digital government
(Motzfeldt and Næsborg-Andersen: 2018). Some legal scholars argue that
this threatens to erode, and thus change, some of the basic moral values
that hereto have been underlying and guiding the administration of the
public sector. The birth control pill’s influence on sexual morality is often
seen as an example of the latter, being an important factor in ‘de-moralising’
sex before marriage in the Western parts of the world (Van der Burg 2003;
Baker 2019: 115–152). This investigation is thus not covering everything
we can learn about the dynamics and structures of moral change from his-
tory, anthropology, sociology, biology, economy, literature and others—
and it does also not aim to do so, for reasons that will hopefully be clear at
the end of the book, when I sketch the conception of ‘the ethical’ I term
contextual ethics.
The second criterion for the choice of cases is to cover cases ranging
from minor over medium to major and radical moral change. When inves-
tigating moral changes it is natural to become fascinated and focussed on
examples of dramatic civil disobedience or moral revolutions, like Gandhi’s
rebellion, the French Revolution or the abolition of slavery, where whole
societies changed some of their fundamental moral values and legal and
political systems (see, e.g. Baker 2019; Pleasants 2018; Appiah 2010; Lear
2008; Berman 1983). In these cases, the moral changes are obvious and
stand out, and the description of them furthermore often amounts to an
engaging and thought provoking story. Yet, to understand the dynamics
of moral change and moral normativity only from the point of view of
revolutions and radical changes would, I believe, be problematic, as they
do not amount to the most common kind of moral changes. Where cul-
tural devastation and moral revolutions are fairly rare, minor moral
changes, on the other hand, are not. Moral changes on a small scale are a
constant aspect of human lives, and they unfold both on the level of the
8 C. ERIKSEN
7
Obviously, the objection could be raised that to truly avoid a too one-sided diet in my
investigation, I also ought to have investigated, for instance, sociological, psychological,
1 INTRODUCTION 9
What is done with legal historical research, laws and other ‘case materi-
als’ in this book is inspired by Lear’s philosophical use of anthropological
and historical material in the work Radical Hope. Lear writes: “A philo-
sophical inquiry may rely on historical and anthropological accounts of
how a traditional culture actually came to an end, but ultimately it wants
to know not about actuality but about possibility” (Lear 2008: 7–9). The
eight narratives of moral changes have very different historical depths and
precision. Some are more or less just mentioned and rely on not very
authoritative sources, some are roughly sketched, and still others are
described within the context of a longer historical background and based
on the work of several authoritative historians. None of the narratives are
constructed in a way that aims to satisfy the criteria and methods of, for
example, history, sociology or legal dogmatics. For instance, no critical
source analysis is made. Furthermore, if the historical literature I have read
is silent or imprecise as to when and where a change happened, so is my
narrative.
The main reason for these choices is that the investigation in this book
is philosophical and hence has other aims, methods and criteria of success
than, for example, historical, sociological and legal research (Wittgenstein
2009: §§ 89–133, xii; Kuusela 2008; Hacker 2015). The aim is not to
supply the reader with new, accurate and reliable historical information—
but to supply us with a clear conceptual understanding of moral change
and to address moral worries and sceptical doubts. The nature of the cases
below is best understood if they are viewed as narratives of various moral
changes inspired by and based on legal, historical, and sociological research
as well as on legal texts like conventions, speaking notes and laws. The
stories are vehicles for philosophical thinking by being descriptions of
moral changes. The relevant questions to ask of these narratives are thus
generally not ‘Is this true? Did things really happen this way at this point
in time? Was the dynamic x actually why y changed?’ (even though it is in
some cases). Rather, the questions to ask are ‘Does this narrative make
sense as a story about a conflict which leads to moral change?’ or ‘Is this
story enlightening as to what could be a dynamic leading to moral change?’
neurological, biological and economic, research into various forms of moral changes.
Further, my theoretical fame could have been wider or different and so forth. With a topic as
broad as ‘moral change’ the possibilities of meaningful critique of my choice of focus as well
as theoretical frame are countless. What I present is not the only good or an exhaustive way
of investigating this topic, but hopefully one fruitful way of doing so.
10 C. ERIKSEN
The central concept in this work is that of ‘moral change’. The last
reason for investigating moral change, I want to bring forth here, is that
despite there since the 1980s has been an increasing interest in and aware-
ness of the historicity of morality, then moral change as such is currently
under-theorised (Hämäläinen 2017: 47–48). The main focus in contem-
porary philosophy is on ‘moral progress’ (see, e.g. Nussbaum 2007, 2011;
Rorty 1999, 2007; Posner 1998a, b; Moody-Adams 1999, 2002, 2017;
Singer 2008; Wilson 2010; Appiah 2010; Pleasants 2010, 2018; Roth
2012; Summers 2016; Jamieson 2016; Musschenga and Meynen 2017;
Buchanan and Powell 2016, 2018; Hermann 2019). The topic of moral
change as such, the dynamics creating it and the structures it unfolds after
thus represents a lacuna in the existing moral philosophical research.
The concept of ‘moral change’ will, for reasons also made clear in the
concluding section on contextual ethics, remain a fairly broad term
throughout this book. If one consults a dictionary, ‘change’ means “make
or become different”.8 Change is further characterised by being a timely
phenomenon—it unfolds between a before and an after. But when, and
thus also why, something begins to change is in many cases difficult to
pinpoint exactly and will often be debatable. As a novice to reading his-
torical research, I often found myself being drawn further and further back
in time in my search for an understanding of the dynamics leading to any
event in the present. Trying to understand the passing of the Convention
of the Rights of the Child in the UN in 1989 thus lead me back to laws and
legal conceptions of the child in the early Roman Empire (Vial-Dumas
2014)! When creating a historical narrative there is often an element of
arbitrary choice in the starting point. The narratives in Part I are no excep-
tion to this rule.
What, then, ‘becomes different’ in a moral change? That is up for
heated philosophical debate; a debated entered in Part II. In this book,
‘moral change’ refers to, for instance, a law going from giving an incite-
ment to cause human harm to not doing so. A moral change can also be a
change in how we believe we best take care of something we value (like
good health), where the value stays the same, but we gain new knowledge
of the world, which changes how well we manage to live up to this value.
A moral change can also be a change in what we morally value or condemn
in our society, like the change from valuing ‘obedience’ in the education
of children to putting more stress on ‘an ability to critical thinking’. A
8
https://en.oxforddictionaries.com/definition/change (accessed 12.4.2019).
1 INTRODUCTION 11
moral change can further be a change in our moral framework and ideals,
like when ‘honour’ was abandoned as a core ideal for family life in
Scandinavia. Such row of examples seems, however, to leave it an open
question precisely what it is that changes in what we refer to as ‘a moral
change’. Is it ever morality itself that changes? Or is it only human under-
standing of morality, or the circumstances, which morality is applied to,
which changes? (Raz 1994: 144; Green 2013a: 480; Moody-Adams 2017:
2–3). An important task for contemporary research, and one which is
dealt with throughout this book, is thus to discuss which metaphors and
conceptualisations are apt for understanding morality. With this book my
hope has been that attention to moral changes in the contexts of actual life
combined with philosophical discussions proves a fruitful road to travel
towards an understanding of the both elusive and tangible phenomenon
of moral change.
PART I
What drives moral changes like the legal prohibition of slavery and wom-
en’s right to vote? The importance of an answer to this question lies in its
role in active creations of social and moral change in societies. For instance,
both Bicchieri and Appiah rely on that general knowledge or a theory of
the dynamics of change can help us to create changes in harmful practices,
institutions and traditions, like honour killing, child marriage, genital
mutilation and political corruption (Bicchieri 2017: ix–xi; Appiah 2010:
xvii, 139–172). Further, a wrong or insufficient conceptualization, held
by, for example, scientists, politicians and NGOs and incorporated into
laws and institutions, can lead to misfired inventions, wasted resources and
possibly human harm. If we lack conceptual clarity, we will have trouble
making good decisions (Hopf 2018: 688). In other words, the value of an
adequate understanding of the dynamics and structures of moral changes
lies in its potential to help or hinder us create progress.
The research into the topic of moral change has several lacunas, one of
which is that “We lack a general account of the springs of moral change”
(Green 2013a: 481)—we lack a general understanding of what leads to
14 The Dynamics and Structures of Moral Change
and creates moral changes. There has been both empirical and philosophi-
cal research into the dynamics and structure of moral revolutions (e.g.
Palmer and Schagrin 1978; Appiah 2010; Pleasants 2018; Hermann 2019;
Baker 2019), into how certain individuals or a certain people have changed
their moral outlook (e.g. Robbins 2004, 2007; Lear 2008; Minnameier
2009; Roth 2012), into which metaphors we use to understand moral
changes (e.g. Hämäläinen 2017), and into how social norms, affecting
important moral issues, change and can be changed (e.g. Bicchieri 2017;
Sunstein 2019). However, we still lack an understanding of the dynamics
and structures of moral changes as such, ranging from minor to revolu-
tionary changes. In the following, I will unfold why I consider practices of
law to be a particular suited focus for a philosophical investigation into
moral change.1
The discussion of the nature of the relations between law and ethics has
ancient roots, and has not been settled to this day.2 It therefore seems
prudent to follow Green and Hart in the conclusions that “The single
most important thing to know about the relationship between law and
morality is that there is no single thing to know” (Green 2013b: 1). This
is because “There are many different types of relation between law and
morals and there is nothing which can be profitably singled out for study
as the relation between them” (Hart 1997: 185, my italics). The work in
this book thus rests on the assumption that law and ethics are connected
in various ways. “Law is a normative social practice” (Delacroix 2011:
155), and part of that normativity is of an ethical nature (Delacroix 2011:
147,148; Van Der Burg 2014: 71). Laws and legal institutions institution-
alise moral values and ideals of the society we want to keep, as well as
visions of the society we do not yet have but seek to create (Green
2013a: 494).
Although law can incarnate parts of a society’s moral ideas and ideals,
the two concepts are not synonyms: Everything ‘legal’ is not ‘ethical’, and
vice versa. This leads to what can be called law’s inherent moral risk
(Delacroix 2017). There can be a difference in what the law demands of
us and what morality demands of us, for example, in the form of love,
1
In legal science there is no general agreement on the definition of law (see e.g. Gardner
2011; Del Mar 2011: 1; Marmor 2015; Patterson 2010). I follow Patterson (1990: 980),
Morawetz (2000a) and Eisele (2006) in conceptualizing law as a practice (or, more precisely,
a set of practices, as law is and has been practiced in different ways).
2
Moore (2012) gives an insight into how complex the question and current debates of the
relations between law and morality are in legal philosophy today.
The Dynamics and Structures of Moral Change 15
Creon probably did not make this particular law with the intention of
doing good, but in order to get even. Yet even if he had tried to do good,
this would not have been a guarantee of success. The open, transcending
nature of the ethical excludes an exhaustive codification of it, so the
demands of law and ethics will always run the risk of running up against
each other.
Another important difference between the normativity of law and that
of ethics is that we do not get to choose what morality demands of us.
That it is bad to cause suffering is not so because we have agreed upon it
or decided it to be so. But in principle, though not always in practice for
the single individual or group, “Law is different. We do get to choose
16 The Dynamics and Structures of Moral Change
what our law requires of us. […] Law is always subject to deliberate
choice” (Green 2013a: 475). We as a society—or our representatives or
our tyrants—get to choose what is demanded of us legally.
Moral changes can, as mentioned in the introduction, among other
things be changes in what is valued and strived for, in how we conceive our
duties, obligations and commitments, in what we are prepared to label as
wrong and harmdoing and and how we deal with wrong and harmdoing.
A lot of this is reflected in the legal practice of a society because law is one
of the ways in which societies deal with the shifting demands of what life
ethically asks of us. Law and laws can thus be seen as both ethically insuf-
ficient and ethically indispensable (Fink 2007: 55). When humans make
law, they mean business—they do not in general stipulate law about mat-
ters considered unimportant or petty, and among these important con-
cerns are ethical concerns. We are willing to punish ethical wrongdoings
and omissions in more severe ways than when someone breaks the rules of
good table manners or lacks aesthetic sensitivity (Hanfling 2003: 27).
Significant changes in a society’s morality will for that reason often be
reflected in changes of law (Hart 1997: 185; Green 2013a: 479). Much
can therefore be learned about moral change through the history of
changes in laws, legal practices and institutions. Moreover, the changes in
law can often be traced because many societies document law. The oldest
known written source of law is carved in stone, namely the Code of
Hammurabi, which is approximately 4000 years old (Andersen 2011b:
71). Humans declare laws publicly, they carve laws onto stone, write them
down in books, explain the purpose of them in preambles, make the results
of law cases public on official webpages, report about them in newspapers,
announce the laws publicly and write legal and legislative history and all of
this are sources available for a philosopher.
In this part of the book, a philosophical investigation of the structures
and dynamics of moral change is conducted through eight narratives
mainly inspired by the practice of law. The eight stories are “recollections
marshalled for a particular purpose” (Wittgenstein 2009: § 127), in this
case the purpose of eliciting an overview and understanding of how and
why morality can change.
CHAPTER 2
Hilda pauses a few minutes outside the door, listening for sounds in the room
behind her. She knows there cannot be any sound to hear, yet she always lingers
and listens, nonetheless. This is the hardest part. The time where it still can be
undone, where she can stop it from happening, the deed, the drowning. This
time the unwanted had been a boy. He was more nourished and bigger than the
other infants had been. She freezes. Perhaps. Perhaps he does have the strengths
to lift the lid even though she had weighed it down with the coal scuttle? Hilda
holds her breath. No. Not a sound. She walks off to take care of the laundry.
By the end of the nineteenth century, the conception of children and how
to treat them was undergoing a significant change in the legal systems of
Europe and other parts of the Western world. As a tiny part of this larger
movement, the Swedish government in 1902 passed laws with the aim of
better protection of criminal, neglected and orphaned children; the bad
conditions of which they had become aware (Grahn-Farley 2013:
151–153). Before 1902, the situation in Sweden was indeed grim:
The social regimes in place during this period with respect to children living
outside the protection of the family unit were few and brutal. An
Änglamakerska (Angel maker) was a woman who was effectively paid to
treat a child so badly and neglectfully that it died. Another form of social
practice for dealing with such children was Sockengång, which meant that a
child without means had to move between different private households,
which took turns in providing for the child. (Grahn-Farley 2013: 150–151)
Unfortunately, the law had the opposite effect and further encouraged the
dreadful practice. Under the 1902 foster care law, the foster home received
a lump sum intended to last until the child reached adulthood. This meant
the profit to the foster home per child was higher the earlier the child died,
which encouraged the angel-makers. (Grahn-Farley 2013: 154)
of that misses its objective. The Swedish politicians aimed to relieve the
sufferings of children with the 1902 laws, but failed to do so due to their
flawed legal construction, and instead the laws led to increased suffering
and abuse. This moral decline happened, because the laws gave a strong
economic incentive to take up the practice of angel-making. When the
politicians finally faced up to the mistake in the construction of the law, it
was, eventually, changed, and changed for the better.
CHAPTER 3
In time Eirik’s thralls caused a landslide to crash down upon the farm of
Valthjof at Valthjofsstadir, where upon Valthjof’s kinsman Eyjolf Saur killed
the thralls by Skeidsbrekka above Vatnshorn. For this Eirik killed Eyolf Saur.
He killed Holmgang-Hrafn too at Leikskalar. Gerstein and Odd of Jorvi,
both kinsmen of Eyolf’s, took up his case, and Eirik was driven out of
Haukadal. (Jones 2008: 127–128)
unnatural option of action did not do the transformative trick. Only turn-
ing the other cheek was not recognised as a meaningful solution to the
problem of feuds.
The solution came by adding two other ingredients to the mix: The
first extra ingredient was interpreting the principle of equality implicit in
the practice in a more abstract manner (Anners 1998: 16). In some societ-
ies, ‘an eye for an eye’ was taken to be a principle that required a literal
interpretation (Andersen 2011b: 71). Did you by accident or intentionally
cut off someone’s right hand, the just punishment was that your right
hand had to be cut off too. In other societies, it had been acceptable to
inflict a similar, and not necessarily identical, bodily damage on the other
part (Andersen 2011b: 71). But the new way of understanding the prin-
ciple of equality in relation to feuds was altogether to abandon retaliation
in terms of physical harm and instead introduce the idea of paid damages.
A family could be paid equivalent damages in the form of money, sheep or
other goods, when a family member was damaged or killed by another
family. “This is why the oldest existing records of legal rules in kin-based
societies first of all are catalogues of the size of the compensation which
the offending kin has to pay if it wants to achieve reconciliation” (Anners
1998: 16, my translation).
The other ingredient of the solution to the problem was allowing a
neutral third party to intervene and play a role in this kind of conflicts
between families. Up until this point in history, the family in many ways
was a legally sealed sphere, but now harm was no longer considered a pri-
vate matter between families. It became a matter for the society. The neu-
tral third party could be a chief, a king, a people’s council, or a state
official, depending on the time in history and the form of society (Anners
1998: 13, 17). This third party could act as a legislator, setting up the
compensation system, as a mediator, judge, and law enforcer in case one
of the families was not complying with what had been decided. Thus,
involving a powerful, neutral third party in the feud and getting ‘a dam-
ages check’, was what finally made the turn of the cheek obviously not
easy, but doable in enough instances as to end the feuds and the practice
of physical vengeance as the normal way of reacting to harm in
Scandinavia—except in kindergartens.
In the first instance, this moral change (the change from having a prac-
tice undermining the flourishing of societies, families and individuals to
24 C. ERIKSEN
The biggest book fair of the year is approaching. At the aspiring University
Press in Aarhus editors work round the clock, each herding their own unruly
band of authors, reviewers, proofreaders, graphic artists and printing houses
forward, making sure no one strays from the agreed upon path of deadlines.
During the weekly editorial meeting, attendants are fiddling with their luke-
warm coffee mugs, many are smoking, and all, one by one, give reports to
the director on how manuscripts fare in the production process. As the
meeting progresses, the room slowly fills with blue smoke, forming thick
layers and lazily drifting in spirals towards the sealing.
1
Lov nr. 512 of 06/06/2007 (https://www.retsinformation.dk/forms/r0710.
aspx?id=11388), which was later modified by Lov nr. 607 of 18/06/2012 (https://www.
retsinformation.dk/Forms/R0710.aspx?id=142456).
2
https://www.retsinformation.dk/eli/ft/200614L00535.
4 THE OBEDIENT DANES AND THE SMOKING LAW 27
When the Smoking Law was passed, it was met with massive critique by
many Danes and especially by owners of clubs, cafés and restaurants (MM/
TF 2017: 48). A group of the latter even took the Danish State to court
to fight for the right of guests to smoke in their establishments, and for a
while, some ordinary citizens took to civil disobedience and broke the law
by still smoking in restaurants, workplaces and schools. However, within
less than six months, the vast majority of Danes did not only obey the law,
but they had also changed their views on smoking as well as their smoking
practice. Today, Danes value smoke-free environments far higher than
their freedom to smoke (MM/TF 2008: 5, 27, 46; 2017: 9). A smoker is
now also considered a slightly morally bad person—someone with a lack
of spine, who pollutes the air and other people’s health, and who is respon-
sible for being a burden to the welfare society. Smoking is thus not morally
neutral any longer, like coffee drinking still is. The moral changes dis-
played here are a shift from the smokers not protecting the health of oth-
ers to actually doing so, as well as a people going from valuing personal
freedom and enjoyment highest, to valuing the care of other people’s
health higher; changes, which some Danes consider ‘a cultural revolution’
(Lose 2018). What explains this rapid moral transformation?
The Smoking Law was passed, as earlier mentioned, because the politi-
cians found the increasing scientific knowledge and evidences of a causal
connection between not only active but also passive smoking and damag-
ing consequences to peoples’ health convincing. Here the dynamic behind
the legal change was that those in power took scientific knowledge seri-
ously (and, a cynic might add, they created an opportunity to tax tobacco
even further and save expenses in health care). Yet, knowledge of a
damage-causing causal chain cannot have been the main dynamics behind
the fast change in the moral values and smoking practice of the Danish
population. This is so because this knowledge had been around for decades
and had not in itself stopped the Danes from smoking. However, this
general knowledge in the population was most likely part of the context,
which enabled the rapid transformation to unfold, though it was not the
triggering factor.
A tricking factor for the change was the passing of the Smoking Law
(MM/TF 2008: 20; Malacinski 2011), but to explain the pace and thor-
oughness of the change, we also have to look at another dynamic, as the
world has seen plenty of laws being passed without eliciting any changes.
The other main explanatory factor still needed in this case is the fact that
28 C. ERIKSEN
Danes’ practice of smoking and the moral evaluation of the practice and its
participants could thus change so rapidly, because the Danes do what the
law asks of them, and not, as it is tempting to assume, because the majority
of Danes’ moral values and view on smoking had changed first. In the
‘smoking law case’ we thus witness law-created moral changes. Not only
do Danes now morally value and thus seek to create ‘smoke-free environ-
ments’, but they also morally condemn smoking and to some extent smok-
ers. Furthermore, the particular human vulnerability, which the politicians
intended to protect by the Smoking Law, is in fact better protected after
the passing of the law than before, because the Danes obey the law. People,
who were previously unwilling passive smokers in places where they often
could not avoid being—like babies in day-care, children in kindergartens
and in schools, people in workplaces and elderly people in nursing homes—
are no longer exposed to smoke, and their health is better protected due
to that. The scientific discovery of links between a certain practice and
damages to human health, the spread of this knowledge, the passing of
laws combined with a very law-abiding people were the dynamics leading
to these moral changes in a practice and a people’s moral outlook.
CHAPTER 5
A Rebirth of Justice?
Indigenous Land Rights in Canada
She had never appreciated the expression ‘the calm before the storm’. Where
she lived, there was hard wind, when a storm was approaching, making the
rusty roofs on the tool sheds rattle and the lake sing in low growling voices
between the rocks on the shore. Today, however, before the trial is set to
begin, there is a moment of utter silence in the courtroom. She let herself be
filled with its dignified calm, praying it will last through the storm of false-
hoods she and her people are about to face, praying that her voice will be
heard through it.
In the area now known as Canada, humans have been living for thousands
of years. These peoples, today referred to as Indigenous Peoples, were liv-
ing mainly as hunters, gatherers, fishers and farmers. Some of the 1.8 mil-
lion Indigenous Peoples living in Canada today can trace back their history
in the area more than 3000 years, like the Haida and the Gitxsan. They
first interacted with European hunters and traders around 1000 AD, but
sustained contact was not established until the Europeans settled in the
seventeenth and eighteenth centuries.1 For the Indigenous Peoples this
contact proved fatal in many cases, and in all cases harmful to their way
of life.
Yet, in Canada, unlike many other parts of the world getting in touch
with the European colonisers, the land was not conquered (Mandell
1
http://www.thecanadianencyclopedia.ca/en/article/aboriginal-people/. Accessed
15.7.2017.
2015a: 1; Harhoff 1993: 366). The traders, and later settlers, were wel-
comed, and over time different numbered treaties on the use of land were
negotiated between the indigenous population and the reigning monarch
of Canada: ‘the Crown’ in the UK (Mandell and Pinder 2012: 2; Harhoff
1993: 377). This was done according to the Royal Proclamation of 1763,
stating that if aboriginal title has not been dealt with, then the land and its
resources are not available “as a source of revenue” (Mandell 2015b: 2;
see also Harhoff 1993: 372). This means that throughout Canada’s his-
tory and through Canada’s constitution, there is “a bedrock of legal plu-
ralism. […] This law and the Treaties endowed Canada with an Indigenous
foundation based on the rule of law” (Mandell and Pinder 2012: 5–6).
The settlers brought their political, religious and legal systems with
them and established a European-like society in Canada (Harhoff 1993:
366–408). Unfortunately, they also brought ‘the coloniser ideology’ with
them, which considers Indigenous People primitive and without any real
civilisation in terms of law, art, trade, politics, crafts, agriculture, religion
or ownership of land (Mandell 2015a: 1–8). From the late eighteenth
century, but particularly in the late nineteenth and early twentieth centu-
ries, the Canadian government and ‘European Canadians’ tried to delete
what was considered the barbarian indigenous culture in order to bring
civilisation to the savages (Harhoff 1993: 374–375).
The legal system proved a powerful tool in this process. Laws like the
Gradual Civilization Act (1857) and the Indian Act (1876) were passed.
These laws established reservations, where the Native Peoples had to live,
and passed restrictions on eligibility to vote in band elections; they forbid
traditional dress and the practising of dances, decreased hunting and fish-
ing areas, forbid people to visit other groups in their reservation, banned
traditional religious, legal and social practices such as the Potlatch, which
functioned as a form of the ‘Supreme Court’ for the Indigenous Peoples;
and they imposed severe sanctions on people not converting to Christianity,
such as laws preventing non-Christians from testifying or having their
cases heard in court (Mandell 2015a: 3; Mandell and Pinder 2012).
Furthermore, from 1927 to 1951, the native voice of a legal challenge
over land rights had been silenced by the Canadian government, as it was
illegal for an Indigenous nation or person to raise money to take the land
question to court—and for any lawyers to help them doing so (Mandell
2015a: 8). Laws, like the Royal Proclamation of 1763, protecting one’s
land rights are of little use, if one is forbidden by another law to raise a
land question in the courts.
5 A REBIRTH OF JUSTICE? INDIGENOUS LAND RIGHTS IN CANADA 31
In other words, even though Canada’s past and colonial history is less
bloody than that of other places in the world, and even though it does
hold examples of respectful cooperation over questions of land and
resources between Indigenous Peoples and European-descendant
Canadians, it is still a story unfolding deep harm and injustice and a ‘mas-
ter culture’ living by the rule ‘might is right’ rather than by the rule of law.
In many cases, the government and the provinces in Canada have not
respected the rights of natives nor honoured the law (Harhoff 1993:
378–381). Instead, without permission and concluding treaties, their
practice was to take control over the land and its resources of fishing, min-
ing, farming and lumber production.
The paradigm of colonialism slowly shifted globally during the last part
of the twentieth and the first part of twenty-first centuries. Indigenous
Peoples in Canada, as in other parts of the world, gradually regained some
of the right to be legal subjects with equal rights. Once that shift had
reached the legal system, Native Peoples started going to the courts in
order to claim justice and make governments and the surrounding societ-
ies respect native right to self-government and honour their title to land,
laws, traditions, languages and religions. This also happened in Canada
(Harhoff 1993: 410–411).
However, at the same time the political and legal process leading to
Canada’s independence from the UK in 1982 had begun, and here
Indigenous Peoples were not invited nor allowed to take part in the nego-
tiation process (Mandell and Pinder 2012). The Indigenous Peoples right-
fully feared that one of the reasons for this was that politicians planned
that the partition should entail an annihilation of Indigenous Peoples’ title
to land (Harhoff 1993: 400). For obvious practical, historical and financial
reasons, the idea of ‘aboriginal rights’ was unpopular in many parts of the
Canadian society (Mandell and Pinder 2012: 1–3). In order to be heard
and to avoid the removal of natives’ title to land from the new Canadian
Constitution, legal and political action was taken by several Indigenous
Peoples.
In 1977 the Union of BC Indian Chiefs hired the lawyers Louise
Mandell and Leslie Pinder (Mandell 2015a: 8). Their task was to work
together with the Chiefs for an entrenchment of Native Rights before the
partition of Canada and the UK. Later the task transformed into taking
the land question to court (Mandell and Pinder 2012: 1). Indigenous
Peoples asserted that their sovereign rights and aboriginal title to land
were valid and intact from the time before the Europeans first came to
32 C. ERIKSEN
Canada (Harhoff 1993: 370–373), and therefore they had title to much
more land than the reservations, in which they had been placed by the
government. Natives conceived the relationship with the UK Crown to be
a partnership, and likewise the old numbered treaties and the Canadian
Constitution of 1867 were conceived to express pacts among equal
‘founding peoples’ (Mandell and Pinder 2012: 4).
But even though the Native Peoples of Canada succeeded in bringing
national and international political and media attention to their cause in
the years up to the passing of The Canadian Bill and the final partition in
1982, they were never included in the negotiation process and the consti-
tutional reform (Mandell and Pinder 2012: 8–16). What was managed to
be saved of aboriginal title in the new Canadian Constitution of 1982 was
sections 25 and 35, the latter which “recognizes and affirms the existing
aboriginal rights” (Mandell and Pinder 2012: 16). But, not surprisingly,
when it came to the questions of land rights, the insertion of section 35 in
the Constitution, and especially how it was interpreted afterwards by both
the Canadian courts and government, did not prove to be a happy ending.
The government’s practice of taking land without properly addressing
native title continued and continues even to this day.2 But at this point in
history the Indigenous Peoples are no longer robbed of their legal voice,
and for years, they have openly asked in court rooms, like the Haida:
Where’s the government’s bill of sale? How did the government get title to
the lands and waters, and the fish they claim to be able to destroy, when the
Haida never surrendered our land? (Mandell 2015a: 1)
Over the past 40 years, these questions have been addressed through sev-
eral landmark cases in the Canadian legal system.3 During the court cases
it became apparent that the ‘colonial ideology’ was still alive, not only in
the political system, through the governmental practice of using land
without properly addressing native title, but also in the legal system, in
particular in the way section 35 of the Constitution and the term ‘aborigi-
nal rights’ were interpreted by the courts.
2
See, for instance, Gitxaala Nation v. Canada (2016, FCA 187).
3
Precedent setting court cases have been Calder v. Attorney-General of British Columbia
(1973), Guerin v. The Queen (1984), The Queen v. Sparrow (1990), The Queen v. Van der Peet
(1996) and The Queen v. Powley (2003) (http://indigenousfoundations.arts.ubc.ca/home/
land-rights.html; accessed 3.8.2016).
5 A REBIRTH OF JUSTICE? INDIGENOUS LAND RIGHTS IN CANADA 33
When Mandell and Pinder’s firm ran cases for the Union of B.C. Indian
Chiefs, they encountered and had to disprove or refute a large number of
colonial legal doctrines and false claims about Indigenous Peoples’ cul-
ture, legal system and uses of land4: Among these were Indigenous Peoples
being primitive with no real law and political power, and certainly no
effective power and control over their territories, nor had they special laws
for the use of the land (the myth of the juridical vacuum and the colonial
legal principle of terra nullis, a place without owner one is allowed to take
ownership over); it was claimed that the land was unoccupied (the colonial
doctrine of discovery); or if it was occupied, then only so in very small spots,
like a fishing place or a farm; or if not just in small spots, then the land was
only used for ‘a nomadic roaming and passing through’. Likewise it was
claimed that the natives had had no real concept of land ownership before
the encounter with the European settlers; that the natives did not live by
the rule of law, but more by custom, accordingly making it legitimate for
the Crown to extinguish native title and rights and upheave treaties
through legislation (the extinguishment doctrine and the doctrine of par-
liamentary supremacy); that Native Peoples did not act because of institu-
tions, but only because of ‘survival instincts that varied from village to
village’; that if there is some kind of native title today, then prior to this
being proven in court, natives have no right to be consulted or have their
needs and interests in the land accommodated by the government and so
forth (Mandell 2015a, b, 2014, 2012; Mandell and Pinder 2012).
The challenges in disproving and rejecting the above legal, ideological
and factual claims were many, some of them typical for legal disputes, like
establishing the facts of the case and how to interpret central terms, here
‘aboriginal rights’ and ‘existing’ in section 35 of the Constitution. Other
challenges went right to the very heart of this particular dispute. This hap-
pened, for example, when the government and the lower courts could not
accept adaawk (oral history), dirge songs, crests, totem poles, native
accounts of their laws of stewardship, feast system, and use and manage-
ment of their territories through generations as evidence of ancient territo-
rial ownership (Mandell 2015a: 8; Mandell and Pinder 2012: 2–3). Here
is Mandell’s recollection:
4
The cases Delgamuukw v. British Columbia (1997, 3 SCR 1010), Haida Nation v. British
Columbia (Minister of Forests) (2004, SCC73), and Tsilhqot’in v. British Columbia (2014,
SCC 44).
34 C. ERIKSEN
We are about to enter an era where the issues of voice and entitlement to
speak, as well as to be heard, are the dominant metaphors of the political
discourse. Subsequently, this was perhaps best epitomized during the first
lengthy test case on Aboriginal title in British Columbia. Mary Johnson, a
Gitksan-Wet’suwet’en elder, was giving evidence of her adaawk (oral his-
tory), part of which was expressed in a dirge song. Despite the significance
of the song showing ancient territorial ownership, the trial Judge didn’t
want to hear it. ‘I have a tin ear,’ Judge McEachern said. ‘It’s not going to
do any good to sing to me’. Indeed, it didn’t do any good. He ruled that
Aboriginal title in B.C. had been extinguished. (Mandell and Pinder 2012: 3)
An elderly woman singing a traditional song did not make sense to the
judges as an example of proof of land ownership. Perhaps it was even
found ridiculous. It was something to be entirely dismissed as evidence.
The government and courts also refused to recognise that Native Peoples
have a different kind of concept of law and ownership than the settlers,
and that they have another form of farming practice. To have a different
kind is, clearly, not the same as not having a concept of law or land owner-
ship or as not being farmers (Mandell 2012: 6–7).
Another problem was ignorance in the sense of lack of information:
“One challenge was how little was known about Indigenous Peoples and
their legal and political circumstances” (Mandell and Pinder 2012: 11).
This is not surprising given it was a legal and political system that a physi-
cally superior power had attempted to erase for more than a hundred
years. Yet, there was historical, archaeological and anthropological help to
get, sometimes from surprising places—like an old indigenous straw hat
found on a European museum—in order to disprove the false claims and
give insight in the native laws and communities.
Still, the legal battle took many years—the Delgamuukw alone took
14 years, before the Supreme Court of Canada made a final judgement.
Each time the result was a small step forward (Mandell 2014: 5; 2015a: 9;
2015b: 3). The Supreme Court’s decisions over and again sent the same
message to the Native Peoples, to the lower courts and to the political
system; a message supported by the International Community in the form
of the UN, who had condemned Canada’s government’s treatment of
Indigenous Peoples several times. The message was “Canada’s Aboriginal
peoples were here when the Europeans came and were never conquered”
(Mandell 2015b: 5). This translates to: Aboriginal title had never been
extinguished, and it finds expression in the Constitution of 1982 (section
5 A REBIRTH OF JUSTICE? INDIGENOUS LAND RIGHTS IN CANADA 35
35), aboriginal title confers ownership rights, the title is not confirmed to
small spots, oral history is admissible in native land questions as evidence
on the same footing as historical record (Mandell 2014: 4; 2015a: 9;
2015b: 3). Governments and others seeking to use the land must—if they
wish to follow the law and Supreme Court decisions and uphold the basic
principle of the rule of law—therefore first clear the question of aboriginal
title, and in case of such title, they need to obtain the consent of the title
holders.
Aboriginal title confers ownership rights over the territory […], including
the right to decide how the land will be used, enjoyment, occupancy, pos-
session, economic benefits and the right to proactively use and manage.
(Mandell 2014: 4)
The Supreme Court hereby also “placed reconciliation at the heart of the
constitutional relationship” between Native Peoples and the government
(Mandell 2015a: 9; 2014: 7). The idea is to resolve land questions through
negotiations and consent between equal parties (Mandell 2014: 8). This
can be seen as a way of re-establishing traditional indigenous legal culture
focusing on decisions made by consensus (Harhoff 1993: 395, 397).
These changes represent what Mandell sees as legal paradigm shift.
To make sense of the shift as a paradigm shift in Kuhn’s sense of the
word, we have to look for changes that incarnate a form of incommensu-
rability (e.g. in values, in concepts, in ideals, what counts as fact and real-
ity) between the old and the new paradigm, and I believe we can find
that.5 Before the legal paradigm shift, what in the Canadian courts counted
as, for example, ‘evidence’, ‘legally valid agreements’, ‘ownership’, ‘proof
5
Kuhn (1970) introduces the idea of ‘paradigm shifts’ in the natural sciences. One of the
things that characterises a paradigm shift is that there is ‘incommensurability’ between the
paradigm before and the paradigm after a scientific revolution. What counts as ‘good sci-
ence’, as ‘measuring rod’, as ‘measuring’, as ‘criteria’, as ‘logical’, ‘as self-evidently true’, as
‘an investigation’, as ‘a fact’ and so forth can mean something radically different before and
after a shift of a paradigm. A paradigm shift entails “changes in the standards governing
permissible problems, concepts, and explanations” (Kuhn 1970: 106). How Kuhn under-
stood ‘incommensurability’, and if there is incommensurability between paradigms in such a
strong sense as described here, is hotly debated to this day. The equivalent of this debate in
moral philosophy will be addressed in Part II of the book. By accepting Mandell’s use of the
term ‘paradigm change’, I do not claim that the two legal paradigms—the colonial and the
legal pluralistic—in the case discussed earlier cannot be compared in any meaningful ways. In
this case (at least so far), the legal system has in most respects remained the same.
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